The Secretary of State for the Home Department v Have Rexhaj

Entry clearance granted under Appendix EU (Family Permit) automatically has effect as leave to enter under the Immigration (Leave to Enter and Remain) Order 2000. The resulting leave is granted under the Family Permit Appendix, not under Appendix EU.

Accordingly, the exception removing the dependency requirement for a dependent parent previously granted leave under Appendix EU does not apply merely because the applicant entered using a family permit. Different dependency requirements may lawfully apply at the family-permit and settlement stages where the rules clearly provide for that result.

Mrs Have Rexhaj, an Albanian citizen, sought settlement in the UK as the dependent parent of her Romanian daughter-in-law, who held status under the EU Settlement Scheme. She applied for an EU Settlement Scheme Family Permit before 1 July 2021, when dependency was assumed, entered the UK using the permit, and then applied under Appendix EU for limited leave to remain.

The Secretary of State refused the application because dependency had not been established. The First-tier Tribunal dismissed her appeal on the legal and factual issues. The Upper Tribunal allowed the appeal on the legal issue, holding that her leave to enter had been granted under Appendix EU, and set aside the factual findings: [2023] UKUT 161 (IAC).

The central issue was whether leave to enter obtained through a family permit was leave granted under Appendix EU for the purposes of the dependent-parent exception.

Underhill LJ gave the leading judgment, with which Popplewell LJ and Lewis LJ agreed.

1. Appeal allowed. The Upper Tribunal had adopted the wrong legal analysis. The case was remitted on the factual issue.
2. Entry clearance and leave to enter. Under section 3 of the Immigration Act 1971 and article 2 of the Immigration (Leave to Enter and Remain) Order 2000, entry clearance complying with the Order has effect as leave to enter when the holder presents at the border. Mrs Rexhaj’s operative grant was entry clearance under Appendix EU (Family Permit). The Order made the resulting leave to enter an automatic legal consequence of that grant.
3. Relationship between the Appendices. The Family Permit Appendix enables a person to enter the UK so that they may apply under Appendix EU. It does not create a hybrid grant of entry clearance under one Appendix and leave to enter under the other. The references in Appendix EU to leave to enter concern limited situations in which an applicant abroad can apply directly under that Appendix by producing specified documents evidencing earlier residence rights. They do not extend to a person whose entry derives from a family permit. Paragraph FP11, which addresses cancellation and curtailment of leave to enter granted by virtue of a family-permit entry clearance, supported that conclusion.
4. Dependency. The exception for a person previously granted leave under Appendix EU therefore did not apply. Because the settlement application was made after the expiry of the temporary dependency concession, Mrs Rexhaj had to establish dependency. The fact that dependency had been assumed for her earlier family-permit application, or that the result might appear less coherent, could not displace the clear wording of the rules.
5. Intervention and remittal. The AIRE Centre was not permitted to raise a new discrimination argument because its justification could not be determined without evidence on a contentious factual issue that had not been adduced below. The factual appeal was remitted to the Upper Tribunal, which was to decide whether to hear the evidence itself and remake the decision or remit the matter to the First-tier Tribunal. The Secretary of State accepted that the First-tier Tribunal’s factual decision had been procedurally unfair.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal from [2023] UKUT 161 (IAC) and remitted the factual issue.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed Mrs Rexhaj’s appeal on the legal issue and set aside the First-tier Tribunal’s factual findings.
• First-tier Tribunal: On 12 October 2022, dismissed Mrs Rexhaj’s appeal on both the legal and factual issues.